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Case 1:05-cv-12237-WGY Document 1392 Filed 10/15/2007 Page 1 of 4
AMGEN INC., )
)
Plaintiff, )
) Civil Action No.: 1:05-CV-12237 WGY
v. )
)
F. HOFFMANN-LA ROCHE LTD, a )
Swiss Company, ROCHE DIAGNOSTICS )
GMBH, a German Company, and )
HOFFMANN LA ROCHE INC., a New )
Jersey Corporation, )
)
Defendants. )
)
Roche should be precluded from using Amgen’s efforts to pegylate molecules, including
EPO, to divert the Jury’s attention away from the relevant infringement inquiry: whether
Roche’s peg-EPO product contains Lin’s claimed EPO. As made clear in its Infringement
Opening, Roche seeks to introduce misleading and non-relevant evidence relating to Amgen’s
pegylation efforts, including pegylating EPO.1 Roche has also designated deposition testimony
of Amgen employees Thomas Boone and Graham Molineaux relating to Amgen’s pegylation of
EPO. This effort to introduce evidence on these collateral issues should be denied.
1
Trial Tr. at 2377:5-11 (The evidence will show that Amgen, wanting to make a new and better
product, tried to make a pegylated product for just this year and they failed. They were unable to
get a better product. They failed and, therefore, to stop this better product, this new product, they
sued Roche. And Roche has the patent. They could not do it, so they sued.”).
Amgen that are irrelevant. “Evidence which is not relevant is not admissible.”2 Amgen’s peg-
comparing each claim of Amgen’s patents-in-suit (which do not relate to pegylation) with
Roche’s alleged infringing product. It certainly does not involve a comparison of Amgen’s peg-
The Jury must compare the product of Amgen’s process claims, EPO, with Roche’s infringing
peg-EPO. Amgen’s peg-EPO bears no relationship to these inquiries. To the extent that Roche
argues that Amgen’s peg-EPO supports the patentability of its MIRCERA product, the validity
of Roche’s patent is not at issue, and is irrelevant to the infringement question to be decided by
the Jury. The sole issue is comparison of the asserted claims to MIRCERA.
Any alleged relevance that Amgen’s peg-EPO had in this case was in relation to the
Invalidity phase. However, this Court’s summary judgment ruling that Dr. Lin’s patent claims
were adequately described and enabled and that they did not need to describe or enable how to
While Roche argues that Amgen’s peg-EPO is relevant for infringement (it is not
relevant, evidence may be excluded if its probative value is substantially outweighed by the
danger of unfair prejudice, confusion of the issues, or misleading the jury. . . .”3 Roche intends
to mislead the jury by portraying that its construction of peg-EPO was difficult and is a worthy
invention and that Amgen tried to pegylate EPO but failed (Amgen did not fail). Roche seeks to
deceptively depict Amgen as incapable of doing what Roche did, and as litigious against Roche
to compensate for its failure to pegylate EPO (Amgen made peg-EPO).4 Comparing Amgen’s
peg-EPO with Roche’s peg-EPO would mislead the Jury away from the proper infringement
2
FRE 402.
3
FRE 403.
4
Trial Tr. at 2377:5-11.
inquiry.
As Amgen’s peg-EPO would be highly misleading and confusing to the Jury, and
extremely prejudicial to Amgen without bearing any relevance to infringement, the Court should
preclude Roche from introducing evidence of Amgen’s peg-EPO, and properly instruct the Jury
I certify that counsel for the parties have conferred in an attempt to resolve or narrow
CERTIFICATE OF SERVICE
I hereby certify that this document filed through the Electronic Case Filing (ECF) system
will be sent electronically to the registered participants as identified on the Notice of Electronic
Filing (NEF) and paper copies will be sent to those indicated as non registered participants on the
above date.
MPK 133804-1.041925.0023